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THE  ORGAN 
IN  THE  SYNAGOGUE. 


An  Interesting  Chapter  in 
the  History  of 

REFORM  JUDAISM 
In  America. 


By  Rabbi  Barnett  A.  Elza*. 

Not  once  alone  in  recent  years  have  the 
Courts  been  invoked  to  settle  disputes  of 
a  purely  religious  character.  In  this  re- 
spect, too,  history  has  a  curious  way  of 
repeating  itself.  The  accidental  stumbling 
across  an  old  volume  of  South  Carolina 
Law  Reports  has  furnished  me  with  a 
full  account  of  what  was.  without  doubt, 
the  ablest  and  most  hotly  contested  case 
of  the  kind  on  record.  It  is  one  of  the 
landmarks  in  the  history  of  Reform  Juda- 
ism in  America,  and  is  to  be  found  in 
Richardson's  South  Carolina  Law  Re- 
ports, Vol  2,  pp  245-286:  The  State  vs 
Ancker. 

The  spirit  of  progress  was  first  mani- 
fested in  the  Synagogue  of  Charleston  in 
1824,  when  the  "Society  of  Reformed 
Israelites"  was  organized.  The  distin- 
guished Isaac  Harby,  one  of  its  leading 
spirits,  and  whose  Anniversary  Address, 
in  1825,  has  come  down  to  us,  had  removed 
to  New  York  in  1828.  His  loss  must  have 
been  severely  felt,  but  the  movement  he 
had  helped  to  inaugurate  continued  till 
about  1839  or  1840,  when  it  came  to  an  end, 
its  members  reafflliating  with  the  old  con- 
gregation, Beth  Elohiro. 


The  old  Synagogue   had  been  destroyed 
by  the  great  ftre  of  1838.    It  is  interesting 
to  note  that  amongst  the  many  things  I 
recently  discovered  is  a  large  oil  pain-ting, 
at  the  back  of  which  is  this  inscription: 
"Interior  of  K.  K.  B.  E.,  of  Charleston,  S. 
C.,    destroyed    by    the   great   fire  of  April, 
1838,   painted    from    recollection   and   dedi- 
cated  to  the  members  of   that   congrega- 
tion by  Solomon  N.  Carvalho."  This  Syna- 
gogue— the  one  that  is  still  used  by  Beth 
Elohim— was  rebuilt  in  1840.    As  just  men- 
tioned, considerable  accession  to  its  mem- 
bership was  made  by  the  reaffiliation    of 
the  members  of  the  "Society  of  Reformed 
Israelites."  Though  this  Society  had  now 
ceased  to  exist,   its  spirit  was  still  alive. 
The  time  seemed  favorable,   and  a  move 
was  made  to  introduce  an  organ  into  the 
Synagogue  as     an     accessory   to  worship. 
This  was  the  first  organ  ever  introduced 
into  a  Jewish  place  of  worship  in  America. 
This  innovation,  however,  was  stoutly  re- 
sisted by  many  of  the  older  members,  but 
the  progressive  party,   being  now  in     the 
majority,  carried  the  day.     The    minority 
withdrew  and  worshipped  elsewhere,  and 
in  1844  carried  the  case  to  the  Courts.  The 
case  was   argued    before   Judge   Wardlaw 
in  1845,  the  most   brilliant  legal   talent  of 
the  day  being  arrayed  on  either  side,  King 
&  Memminger   for     the     appellants,     and 
Petigru  &   Bailey,   contra.     The  dominant 
party     gained     the     verdict,     which     was 
affirmed  when  the  case  reached  the  Court 
of  Errors  and  Appeals  in  1846.     The  opin- 
ion- was  delivered  by  Judge  Butler  and  is 
a  magnificent  document.    One  marvels  at 
the  acumen  therein  displayed.    Though  the 
question  of  the  organ  is  no  longer  a  living 
question   with    us,    there  are  questions  of 
principle  involved    on    which     the    Court 
passed,   which  questions  are   of  perennial 
interest.     1     therefore,    reproduce  part   of 


the  opinion.  Tt  is  worthy  of  careful  study, 
even  at  this  late  day: 

"It  Is  almost  impossible  to  reduce  mat- 
ters growing  out  of  a  difference  of  opinion 
to  such  a  definite  form  as  to  subject  them 
to  judicial  cognizance.  Rights  and  fran- 
chises are  such  matters  as  have  legal  ex- 
istence and  may  be  protected  by  law. 
Speculative  disputes  must  be  left,  in  some 
measure,  to  the  arbitrament  of  opinion.  To 
suppose  that  an  uninterrupted  harmony  of 
sentiment  can  be  preserved  under  the 
guarantee  of  written  laws  and  constitu- 
tions, or  by  the  application  of  judicial  au- 
thority, would  be  to  make  a  calculation 
that  has  been  refuted  by  the  history  of 
all  institutions  like  that  before  us.  Neith- 
er is  it  practical  to  frame  laws  in  such  a 
way  as  to  make  them,  by  their  arbitrary 
and  controlling  influence,  preserve,  in.  per- 
petuity, the  primitive  identity  of  social 
and  religious  institutions. 

"The  granite  promontory  in  the  deep 
may  stand  firm  and  unchanged  amidst  the 
waves  and  storms  that  beat  upon  it,  but 
human  institutions  cannot  withstand  the 
agitations  of  free,  active  and  progressive 
opinion.  Whilst  laws  are  stationary, 
things  are  progressive.  Any  system  of 
laws  that  should  be  made  without  the 
principle  of  expansibility,  that  would,  in 
some  measure,  accommodate  them  to  the 
progression  of  events,  would  have  within 
it  the  seeds  of  mischief  and  violence. 
When  the  great  Spartan  law-giver  gave 
his  countrymen  laws,  with  an  injunction 
never  to  change  them,  he  was  a  great 
violator  of  law  himself.  For  all  laws, 
however  wise,  cannot  be  subjected  to 
Procrustean  limitations.  Cesante  ratione 
cessat  lex  is  a  profound  and  philosophi- 
cal principle  of  the  law.  These  remarks 
are  more  particularly  true  In  reference  to 
matters  of  taste  and  form.  Let  the  oW- 


214.67OB 


est  member  of  any  civil  or  religious  cor- 
poration look  back  and  see,  if  he  can,  In 
any  instance,  trace  the  original  identity 
of  his  institution  throughout  its  entire 
history.  Those  who  now,  in  the  case  be- 
fore us,  insist  with  most  earnestness  on 
a  severe  observance  of  ancient  rites  and 
forms  would  hardly  recognize  or  under- 
stand the  same,  as  they  were  practiced 
by  their  remote  ancestors,  who  founded 
the  Synagogue.  The  Minhag  Sephardm 
was  a  ritual  of  Spanish  origin;  and,  al- 
though it  may  yet  obtain  in  different  coun- 
tries, yet  how  differently  is  it  observed.  If 
two  Jewish  congregations,  one  from  Po- 
land and  the  other  from  Spain,  were  to 
be  brought  together,  whilst  professing  to 
be  governed  by  the  same  rituals,  they 
would  probably  find  themselves  unable  to 
understand  each  other  in  their  observance* 
of  them. 

"The  Jews  in  every  part  of  the  world, 
by  whatever  forms  they  may  be  governed, 
could,  no  doubt,  recognize  the  general 
spirit  and  prevailing  principles  of  their 
religion  to  be  essentially  the  same.  But 
in  mere  form  a  resemblance  could  not  be 
traced  with  anything  like  tolerable  uni- 
formity. 

"As  practiced  and  observed  in  Charles- 
ton in  1784,  and  for  many  years  afterwards, 
exercises  in  Spanish  were  connected  with 
It.  They  have  been  long  since  discontin- 
ued; long  before  the  commencement  of 
this  controversy.  Religious  rituals  mere- 
ly, not  Involving  always  essential  princi- 
ples of  faith,  will  be  modified  to  some  ex- 
tent by  the  influence  of  the  political  insti- 
tutions of  the  countries  in  which  they  are 
practiced.  In  a  despotism,  where  tolera- 
tion is  a  sin  to  the  prevailing  religion,  re- 
ligious exercises  will  be  conducted  in  se- 
cret or  in  occult  forms.  Faith  and  doc- 
trine may  take  refuge  in  these  for  safety. 


On  the  contrary,  In  a  country  where  tol- 
eration is  not  only  allowed,  but  where  per- 
fect freedom  of  conscience  is  guaranteed 
by  constitutional  provision,  such  devices 
will  not  be  resorted  to.  Language  itself 
is  continually  undergoing  changes;  clum- 
sy expressions  of  rude  language  will  give 
way  to  modern  refinement.  There  are 
those  in  every  church  who  would  be 
shocked  at  the  change  of  expression  in  re- 
spect to  the  tablets  or  books  that  contain 
the  prayers  and  more  solemn  forms  of  re- 
ligious rituals.  At  this  timo  there  are 
many  who  oppose  any  change  of  style  in 
the  editions  of  the  Bible.  It  is  not  sur- 
prising that  those  who  have  been  accus- 
tomed to  one  form  of  expression  should 
have  associations  with  it  that  they  could 
not  have  with  another.  And  it  is  so  of  all 
religious  forms  and  ceremonies.  The  feel- 
ings of  such  persons  should  never  be  treat- 
ed with  indifference  or  rudeness.  They  de- 
serve respect  and  are  to  be  regarded  as 
useful  checks  on  reckless  innovation. 
Matters  of  this  kind  must  necessarily  be- 
long, and  should  be  committed,  to  the  ju- 
risdiction of  the  body  that  has  the  right  of 
conducting  the  religious  concerns  of  ec- 
clesiastical corporations.  Charters  are 
granted  to  such  corporations,  upon  the 
ground  that  they  can  carry  out  their  ends 
with  greater  efficiency  than  if  they  were 
left  to  individual  exertions  and  the  opera- 
tion of  the  general  laws  of  the  land.  The 
parties  before  us  who  are  opposed  to  re- 
form contend  that  dangerous  changes 
have  been  made  in  the  form  of  their  wor- 
ship, particularly  as  it  respects  the  intro- 
duction of  instrumental  music.  It  is  not 
pretended  but  that  the  organ,  the 
instrument  complained  of  was  in 
troduced  by  the  constituted  authori- 
ties; but  the  ground  taken  is,  that 
this  authority  has  been  exercised 
to  do  that  which  is  against  the  provisions 

5 


of  the  charter,  which  guarantees  that  Uu- 
Minhag  Sephardim  should  be  a  ritual  of 
the  congregation,  and  that  it  did  not  al- 
low of  instrumental  music  as  a  part  of  it. 
The  objection  is  to  the  mere  form  in 
which  the  music  is  used  and  practiced  in 
this  congregation.  1  suppose  it  might  be 
admitted  that  in  its  origin  such  a  ritua! 
was  practiced  without  the  aid  of  instru- 
mental accompaniment,  but  to  suppose 
that  the  exact  kind  of  music  that  was  to 
be  used  in  all  former  time  had  been  fixed 
and  agreed  upon  by  the  Jewish  worship- 
pers who  obtained  this  charter  would  be 
to  attribute  to  them  an  impracticable  un- 
dertaking. That  such  music  was  not  used 
is  certain;  but  that  it  might  not  in  the 
progress  of  human  events  be  adopted 
would  be  an  attempt  to  anticipate  the  de- 
cision of  posterity  'On  matters  that  must 
be  affected  by  the  progress  of  art  and  the 
general  tone  of  society,  and  which  could 
not  be  controlled  by  arbitrary  limitation. 
As  this  was  a  subject  that  could  not  be 
well  reached,  much  less  continually  con- 
trolled by  the  judgment  of  this  Court,  we 
think  the  Judge  below  very  properly  ex- 
cluded all  evidence  in  relation  to  it. 

"Evidence  was  offered  on  a  graver  sub- 
ject, touching  the  faith  and  religious  pro- 
fessions of  the  majority  that  introduced 
and  established  the  organ.  It  might  be 
sufficient  to  say  that  the  party  which  has 
been  charged  with  heterodoxy  in  this  re- 
spect profess  to  adhere  to  the  ancient 
faith  of  the  Jews.  They  do  not  occupy  the 
position  of  those  who  openly  disavow  the 
faith  of  the  founders  of  the  synagogue.  If 
they  were  to  do  so,  it  would  be  time  for 
the  Court  to  say  how  far  it  would  take 
cognizance  of  the  rights  of  the  minority 
under  the  terms  of  their  charter.  How 
can  a  Court  ascertain  the  faith  of  others 
except  by  their  professions?  Can  it  be 
done  by  the  opinions  of  others,  and  if  so, 
6 


by  whose  opinions?  It  is  said  that  no  two 
eyes  can  see  exactly  at  the  same  distance, 
and,  perhaps,  no  two  minds  have  exactly 
the  same  conceptions  of  the  same  subjects, 
particularly  of  matters  of  faith  and  or- 
thodoxy. The  unexpressed  sentiments  of 
tip-  human  mind  are  hard  to  be  found  out, 
and  it  is  a  delicate  office  to  assume  a 
jurisdiction  over  its  operations  when  they 
are  to  be  reached  by  the  opinions  of  others 
or  conjectural  inference.  Expressions  and 
acts  may  give  tolerable  information,  upon 
which  the  judgment  may  act  and  deter- 
mine. 

"In  this  case  suppose  the  Judge  below 
had  opened  the  inquiry  as  to  the  faith  and 
doctrines  of  the  dominant  party,  where 
would  he  have  looked  for  information? 
Surely  not  to  the  minority  or  any  others 
who  might  occupy  an  adversary  position. 
Cou'.d  he  have  trusted  to  the  testimony 
that  might  have  been  procured  and  given 
from  other  sects  and  denominations  of 
Jews  in  other  countries?  And  if  so  should 
he  have  consulted  those  who  live  in  Pales- 
tine, in  Germany,  in  England  or  in  the 
United  States?  He  might  have  assumed 
the  power  to  do  this,  but  it  would  have 
been  a  wilderness  of  power  with  scarcely 
a  compass  to  guide  him.  It  would  have 
been  to  go  into  the  labyrinth  of  curious 
and  recondite  learning,  without  a  clue  by 
which  he  could  escape  from  its  bewilder- 
ing perplexities.  He  would  have  had  an- 
other difficulty,  that  is,  to  determine 
whose  testimony  he  would  have  taken, 
for  both  parties,"  no  doubt,  had  ready  and 
able  advocates  for  their  respective  doc- 
trines. It  seems  to  me  it  would  have  been 
hard  for  a  civil  magistrate  to  give  a  defi- 
nite, much  less  a  satisfactory,  judgment 
on  such  subjects.  We,  therefore,  concur 
in  the  propriety  of  the  course  pursued  by 
the  Judge  below  in  respect  to  .these  mat- 
ters. If  the  Court  can  be  called  upon  to 


settle  by  its  decision  such  disputes  it 
would  be  bound  to  require  parties  to  con- 
form to  its  standard  of  faith— a  judicial 
standard  for  theological  orthodoxy!"  (Pp 
270-274.) 

Times  have  changed  since  then,  and  cvii 
conservative  congregations  now  have  the 
organ  in  their  places  of  worship.  We  take 
everything  as  a  matter  of  course  nowa- 
days, and  are  too  apt  to  forget  the  cost 
at  which  our  privileges  were  bought  by  our 
forefathers.  Amongst  the  precious  relics 
of  the  battles  for  religious  progress  that 
have  been  waged,  let  us  ever  cherish  the 
memory  of  the  brave  struggle  of  the  Jews 
of  Charleston  in  1840. 


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